Other Barks & Bites for Friday, August 28: House Bill Seeks to Limit Patent Abuse at ITC, UK Supreme Court Upholds FRAND Jurisdiction, and CAFC Precedential Decisions on Claim Construction

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Barks (noun): peripheral noise worth your attention.

https://depositphotos.com/24175479/stock-photo-sick-or-contagious-pug-wearing.htmlThis week in Other Barks & Bites: Representatives DelBene and Schweikert introduce bill to curb abuse at the International Trade Commission; the Federal Circuit issues a pair of precedential decisions regarding proper claim construction in patent cases; India’s Supreme Court upholds “Coronil” trademark over COVID-19 concerns; UK’s Supreme Court affirms the jurisdiction of English courts in setting global FRAND rates for SEP licensing; Commerce Department’s revised second quarter GDP figures still mark the worst economic contraction for the U.S. in history; activist research group KEI asks the DoD to investigate Moderna’s nondisclosure of DARPA funding for mRNA technology; Kanye West faces lawsuit for misappropriating e-commerce technology platform; and Judge Connolly finds that Fish & Richardson’s representation of a client suing a former Fish client does not pose a conflict of interest.


CAFC Reverses Delaware’s Noninfringement Judgment on Erroneous Claim Construction – On Thursday, August 27, the U.S. Court of Appeals for the Federal Circuit issued a precedential decision in Baxalta Inc. v. Genentech, Inc. in which the appellate court vacated a judgment of noninfringement entered by the District of Delaware after all parties stipulated to noninfringement. The Federal Circuit determined that the district court had erred in its construction of the claim terms “antibody” and “antibody fragment” leading to the parties’ stipulation of noninfringement.

India’s Supreme Court Allows Use of “Coronil” Trademark for Immunity Booster – On Thursday, August 27, the Supreme Court of India affirmed a lower court’s decision to allow domestic consumer goods firm Patanjali Ayurved to market an immunity-boosting supplement under the “Coronil” brand name despite arguments that the company is taking advantage of the COVID-19 pandemic by touting the supplement as a cure for coronavirus.

CAFC Affirms Northern California’s SJ Ruling of Noninfringement in Foundation Piles Case – On Thursday, August 27, the Federal Circuit issued a precedential decision in Steve Neville Substructure Support, Inc. v. Foundation Constructors, Inc. in which the appellate court affirmed the Northern District of California’s grant of summary judgment of noninfringement regarding patent claims covering foundation piles for building supports, dismissing Substructure’s argument that the lower court had erroneously construed claim terms.

UK Supreme Court Affirms Ruling That English Courts Have Jurisdiction in SEP Cases – On Wednesday, August 26, the UK Supreme Court issued unanimous judgments in three cases on licensing rates for standard-essential patents (SEPs), ruling that English courts had jurisdiction to determine fair, reasonable, and non-discriminatory (FRAND) rates for worldwide patent licenses.

CAFC Says Licensing Element of Agreement to Develop Patented Apple Trees is Unenforceable – On Tuesday, August 25, the Federal Circuit issued a precedential decision in Phytelligence, Inc. v. Washington State University in which the appellate court affirmed a grant of summary judgment from the Western District of Washington. The district court found that a section regarding future licensing options from a draft propagation agreement between the parties governing development of a patented cultivar of apple trees was an unenforceable agreement to agree.

Sixth Circuit Reduces Carrier’s Liability in Copyright Case to $5.6M – On Friday, August 21, the U.S. Court of Appeals for the Sixth Circuit issued a ruling in ECIMOS, LLC v. Carrier Corp. in which the appellate court affirmed a jury verdict on Carrier’s infringement of copyright-protected database-script source code for testing HVAC units, but reduced Carrier’s liability for infringement from $7.5 million to $5.6 million after finding that the district court erred in conflating aspects of ECIMOS’ software package with its source code.

ITC Finds Section 337 Violation in Drone Case By SZ DJI Technology – On Thursday, August 20, the ITC issued a notice of a final determination finding a violation of Section 337 by SZ DJI Technology based on a complaint asserting patent claims owned by Autel Robotics. Enforcement of remedial orders will be suspended pending the final resolution of a final written decision by the Patent Trial and Appeal Board (PTAB) invalidating claims of Autel’s asserted patent.

Reps. DelBene, Schweikert Introduce Bill Impacting Patent Licensing Entities at ITC – On Friday, August 14, Representatives Suzan DelBene (D-WA) and David Schweikert (R-AZ) introduced the Advancing America’s Interests Act into the House of Representatives. The bill, which would impact the domestic industry standard and public interest analysis used in proceedings at the U.S. International Trade Commission, is designed to “ensure the [ITC] is not misused by patent licensing entities” that “have abused the ITC process for financial gain,” according to a press release about the bill.


AbCellera Expands Patent Suit Over COVID-19 Antibody Technology – On Thursday, August 27, AbCellera Biologics filed an amended complaint in the District of Delaware adding infringement claims based on four additional patents in a lawsuit against Berkeley Lighting involving drug discovery and cell analysis tools being used to develop COVID-19 treatments.

KEI Asks DoD to Investigate Moderna’s Nondisclosure of DARPA Funding for Patents – On Thursday, August 27, activist research group Knowledge Ecology International (KEI) sent a letter addressed to Dr. Mark Esper, U.S. Secretary of Defense, and Dr. Amy Jenkins of the Defense Advanced Research Projects Agency (DARPA), asking them to investigate Moderna’s failure to disclose in their patents any DARPA funding leading to the development of mRNA platform technologies for treating COVID-19. 

Judge Connolly Finds No Conflict for Fish & Richardson Over Previous Representation – On Wednesday, August 26, U.S. District Judge Colm F. Connolly of the District of Delaware entered a ruling denying a motion by Monolithic Power Systems to disqualify Fish & Richardson from representing Volterra Semiconductor as a plaintiff in a patent infringement suit. Judge Connolly found that Fish & Richardson’s previous representation of Monolithic in patent-related matters was not substantially related to the firm’s representation of Volterra in the present case.

TTAB Precedential Ruling Strikes Supplemental Report in Cigar Trademark Cancellation Proceeding – On Wednesday, August 26, the Trademark Trial and Appeal Board (TTAB) issued a precedential ruling striking a supplemental report filed in a cancellation proceeding regarding a “Cohiba” cigar trademark after finding that the report, discussing the existence of cigar podcasts and news reports as they relate to consumer confusion, is not a proper supplementation of an original report filed in 2002 because it contains new facts supporting opinions in the original report, not new arguments.

USPTO Announces 2020 Winners of the Patents for Humanity Program – On Wednesday, August 26, the U.S. Patent and Trademark Office announced six groups as winners for this year’s Patents for Humanity program. Winning entities developed advances in malaria vaccines, trauma treatments, low-cost prescription eyeglass fabrication and membrane bioreactor technology.

Kanye West Sued Over Stealing E-Commerce Platform in Violation of NDA – On Tuesday, August 25, tech developer MyChannel filed a lawsuit in the Central District of California alleging that Kanye West and his Yeezy Apparel brand misappropriated MyChannel’s in-video interactive e-commerce platform in violation of a non-disclosure agreement between the parties.

Voluntary Dismissal for “Gram” Crypto Trademark Case After SEC Settlement – On Monday, August 24, a motion to dismiss without prejudice was entered in the Northern District of California resulting from the voluntary dismissal of a trademark case filed by Telegram Messenger over the use of a “Gram” trademark in cryptocurrency. The dismissal comes about two months after that firm settled claims with the U.S. Securities and Exchange Commission over violations of U.S. securities law.

Trademark Suit Filed Over Sale of “Terrible Towel” Facemasks – On Friday, August 21, the Eamon Foundation filed a lawsuit in the Western District of Pennsylvania asserting trademark claims against Time In over that entity’s sale of Pittsburgh Steelers-themed “Terrible Towel” facemasks for use during the COVID-19 pandemic.

This Week on Wall Street

TikTok Interim CEO Indicates Potential Business Deal With Walmart – On Friday, August 28, TikTok’s new interim CEO Vanessa Pappas discussed business synergies with Walmart during a CNBC interview, leading to speculation that the retail giant could be leading the pack of potential buyers for the Chinese-owned social video sharing firm.

Commerce Department’s Revised GDP Numbers Show 31.7% Drop – On Thursday, August 27, the U.S. Commerce Department released revised U.S. gross domestic product (GDP) figures showing that, during 2020’s second quarter, U.S. GDP dropped by 31.7 percent. Although earlier numbers initially showed a 32.9 percent reduction in U.S. GDP, the downward revision still marks the worst U.S. economic contraction in history.

Quarterly Earnings – The following firms identified among the IPO’s Top 300 Patent Recipients for 2019 are announcing quarterly earnings next week (2019 rank in parentheses):


  • Monday: None
  • Tuesday: None
  • Wednesday: None
  • Thursday: Broadcom Inc. (84th)
  • Friday: None


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